What Collectors Need to Know When Buying Art and Antiquities Abroad

We all want to bring back some memento from our trips abroad, and why not a piece of fine or decorative art? It’s a tempting idea, but proceed with caution. You might legally buy something that you aren’t permitted legally to take out of the country—which you may only discover once you reach U.S. Customs. To wit: Manhattan lawyer William G. Pearlstein, who represents a number of collectors, was contacted in 2009 by a client returning from a trip to the Middle East who had bought “I don’t know what you’d call it, a sculptural item with hieroglyphics on it,” and said object was seized by customs officials. Looting of cultural property is a significant concern in the Middle East, and in the spring of 2008 the U.S. imposed an emergency import restriction on any “cultural property of Iraq and other items of archaeological, historical, cultural, rare scientific or religious importance.” Customs officials are trained to look for these kinds of objects when travelers from the region arrive in the U.S.

Another incident involved a client of Miami lawyer Stephen Wagner, who purchased an antique backgammon set in Europe that was confiscated by customs officials because the box included inlays of ivory. Ivory, tortoise shell, animal skins, certain antique woods and even bird feathers are prohibited from import under an international treaty protecting endangered species unless accompanied by a special certificate from, in this case, the European Union.

The outcomes of these two confrontations with U.S. Customs were mixed. In Pearlstein’s case, a curator from the Metropolitan Museum of Art examined the sculpture in the Customs holding area and confirmed that it came from Jordan, which does not have the same sweeping export restrictions on archaeological and ethnographic artifacts as Iraq. The process took months, however, and cost the collector thousands of dollars in legal fees. Wagner’s client had less luck. The backgammon set should have been allowed since it was more than 100 years old, qualifying for an exception under the Convention on International Trade in Endangered Species that the U.S. signed in 1973. Still, the E.U. would not issue a certificate without seeing the object, and Customs would not release it without the permit. The backgammon set was ultimately destroyed, and Wagner’s client, who had paid $7,000 for it in Europe, was assessed $3,000 in penalties by Customs in addition to his lawyer’s fees.

How did we reach this point? Every nation in the world except the United States has laws preventing the removal of certain cultural patrimony—the artworks, religious objects and decorative items that form a national sense of self—and these laws are enforced with export restrictions, though prohibitions vary widely. In Brazil, the export of objects produced before 1889 is prohibited, while the Italian government forbids the export of all cultural property more than 50 years old, and Vietnam and Russia prohibit the permanent export of any cultural property.

In 1464, Pope Pius II issued the first known export restriction on cultural artifacts, prohibiting the removal of artworks from the papal states, but it was not fully respected. In 1527, Spanish soldiers overran Italy, sacked Rome and turned the Vatican into a barracks, scattering scholars, artists and artworks. It was not until 1970 that most nations agreed under the UNESCO treaty to respect national claims of cultural property. Even today those laws are not consistently upheld, as the looting of temples in Asia, ancient burial sites around the world and even museums—the Iraq Museum in Baghdad lost thousands of objects after the start of the Gulf War in 1990—makes clear. What is new is that governments can now pursue claims for the return of stolen or looted cultural property in court, often in New York City where much of the international art and antiques trade is based.

“On rare occasions, we are consulted in advance regarding the legalities around the purchase of an object offshore and its importation into the U.S.,” Pearlstein told Observer. “Usually, we are engaged to deal with a problem after the object has already been imported.” The key to avoiding a costly mistake is understanding the laws in the U.S. and abroad. Foreign cultural heritage laws are published in translation on the UNESCO website. U.S. import restrictions, along with civil penalties, are published on the State Department website.

The risks for travelers include losing their property, forfeiting the money spent and even facing legal jeopardy if criminal activity is alleged. “Many of our dealer and collector clients have had objects seized and detained by Customs after arrival at the U.S. port of entry,” Pearlstein said. “All of these objects were subject to forfeiture, and all of the importers were subject to civil and criminal penalties depending on the nature of the infraction, if any. A few of our dealer clients have been placed on watchlists and stopped and searched upon arrival” in the U.S.

The issue is not the cost of the object but its age and how the country of origin defines it. Governments may lay claim to objects they had never previously documented, such as unexcavated ruins or underwater finds. The picture becomes even more complicated in nations with active black markets, where sellers may not know—or may not disclose—the true status of an item.

Solutions for travelers are far from straightforward. One might attempt to buy objects on contingency—leaving the burden of securing an export license, insurance and shipping to the seller and paying only after the item clears Customs and is delivered. Few dealers, however, will assume that level of risk. One may “negotiate for contractual remedies against the seller, including appropriate representations, warranties and indemnities that would trigger a claim for damages on breach,” Pearlstein said. “Unfortunately, the difficulty of enforcing a contractual claim for damages (or even a judgment) against an overseas defendant can make the claim or judgment meaningless.”

Buyers of artworks or cultural property that a nation forbids from export may be arrested if caught with the items in that country, though they are less likely to be detained in the U.S. unless a specific treaty applies. According to Michael McCullough, Pearlstein’s law partner, “The U.S. does not enforce other countries’ export laws without a treaty,” he told Observer. “So, in most cases, the foreign government can complain and make threats, but they have no enforcement authority in the U.S.” The threats, he added, are “always vague. They may ‘take action’ or ‘pursue the matter,’ but there is nothing they can do in the U.S.”

Ignorance of the law provides no protection, as British retired geologist Jim Fitton learned in 2022 when a Baghdad court sentenced him to 15 years in prison for attempting to smuggle artifacts out of Iraq. Fitton acknowledged he “suspected” the fragments he collected were ancient but said, “at the time I didn’t know about Iraqi laws,” and claimed he had no intention of selling them, according to the Associated Press.

Another dispute arose when a client of Daniel J. Gluck, a partner at a Manhattan law firm specializing in customs and international trade, returned from the Middle East with a carved decorative object purchased in a shop that had come from a tomb. The client, an American antiques dealer, had the item confiscated by U.S. Customs, which contacted the originating country. “They claimed the piece was a national treasure and that the item was stolen,” Gluck told Observer. “We disagreed with their claims, but we settled the matter by having my client donate the item to that country and having any record of this dispute removed. Dealers have reputations that are priceless to them, and he wanted his name cleared.”

Things turn serious when a forfeiture procedure determines a clear intent to evade the law, which escalates a matter from civil to criminal. Hiding an artwork or antique in one’s luggage is a red flag. “I’ve had some clients who have rolled up a painting and put it in their suitcase,” said Los Angeles lawyer David Stepp. “Those kinds of actions make it look as though the painting was stolen or illegally exported.”

Abroad, those accused of smuggling cultural property often find themselves largely on their own. “We are U.S. lawyers admitted to practice in New York State and only give advice on the effect of U.S. and New York law,” Pearlstein said. A U.S. embassy or cultural attaché may be contacted for assistance, but travelers may then face a foreign legal system with unpredictable procedures and timelines.

Sometimes matters resolve smoothly and sometimes they do not, and legitimately purchased items may still be seized by customs officials, requiring time and legal expense to recover. Those who did not spend much on a confiscated item are unlikely to invest heavily in court proceedings and often walk away.

Most travelers return home with photographs, souvenirs and the occasional stomach ailment. Collecting rare and interesting objects can be one of the pleasures of travel, but residents of many countries resent the steady drain of cultural material. They see the American vacationer’s desire for mementos as a form of plunder, a laissez-faire banditry that strips them of national treasures and cultural artifacts. They feel their “patrimony”—their national sense of self—is at risk, prompting laws that differ from one country to the next and may confound visitors. As one Connecticut lawyer who has handled numerous cultural property cases said, “the practical answer is, if you buy something, be prepared to lose it. Don’t pay more than you are willing to walk away from.”

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